Appeal of termination for cause is dismissed. The contractor was supposed to appeal to the ASBCA, but it filed a timely appeal with the CBCA. The contractor didn’t file a correct appeal with the ASBCA until the 90-day CDA deadline had passed. The contractor argued the board should apply the “misdirected appeal” doctrine. Under that doctrine, an appeal filed misfiled with the contracting officer may be treated as an appeal to the board. But the board reasoned that while the contractor had emailed a copy of the appeal to the contracting officer, it had also filed a timely appeal with the board. This showed that the contractor knew how to file an appeal at the board. The misdirected appeal doctrine was inapplicable.
Kentucky Business Enterprise (KBE) had a contract with the Army for food services. The Army terminated the contract for cause believing that KBE had indicated an intent not to perform.
Ninety days after the termination, KBE appealed to the CBCA. In addition, KBE sent a notice of the appeal to the contracting office. Realizing that it had appealed to the wrong board, KBE filed an appeal with the ASBCA 91 days after the termination.
Under the Contract Disputes Act, a contracting officer’s final decision is not reviewable on appeal unless the appeal is filed within 90 days of the decision. Even if an appeal is filed 91 days after the decision, the board lacks jurisdiction.
The board may accept jurisdiction over appeals that were misfiled with a different tribunal. KBE argued that the misfiled appeal exception applied because the company had sent notice of its appeal to the contracting officer.
But the board reasoned that a notice of appeal to the contracting officer must demonstrate an intent to appeal for jurisdiction to attach. The board concluded that the KBE’s email notice to the contracting officer did not express any intent to appeal to the ASBCA. Rather, the email, which was also filed with the CBCA, demonstrated that KBE knew how to file an appeal with a board. Thus, KBE’s appeal was not a misdirected appeal; it was just late.
KBE is represented by Dondra J. Meredith of the Education and Workforce Development Cabinet. The government is represented by Scott N. Flesch and Captain Philip L. Aubart of the Army.